The accused, charged with sexual assault and other offences against his wife, sought to adduce WhatsApp messages exchanged between them.
He brought an application for a ruling that the messages were not 'records' under s. 278.1 of the Criminal Code and thus not subject to the admissibility regime in s. 278.92.
The court first ruled that the Crown was not entitled to review the messages at the threshold stage to argue whether they constituted a record.
After reviewing the messages, the court held that the complainant did not have an objectively reasonable expectation of privacy in the messages, as they were voluntarily exchanged with the accused and were innocuous in nature.
Therefore, the messages were not 'records' and the accused was not required to bring an application under s. 278.93 before using them at trial.
